Should Health Insurance Be Sold Across State Lines?

With the withdrawal of Aetna from Delaware’s Obamacare exchange, some consumers will face a health insurance monopoly. The benchmark silver plan for a 40-year old nonsmoker in Wilmington is projected to cost 49% more in 2018 than 2017, and to be the highest cost such plan in the US at $631/month (Kaiser Family Foundation). While those who receive subsidies are protected from this increase (between 80-90% of Obamacare exchange enrollees), those making over 400% ($47,550 for an individual in 2017) of the federal poverty level are not.

Why can’t consumers buy health insurance policies from insurers in other states where premiums might be lower or coverage better? The federal McCarran-Ferguson Act (1945) granted states the right to regulate health insurance plans within their borders, which resulted in a patchwork of 50 sets of regulations and highly concentrated health insurance markets within each state.[1] Market share of the dominant insurer (by state) averages 57% (individual policies), 58% (small group policies), 59% (large group policies); in Delaware these shares are 92%, 75% and 71% (2016, Kaiser Family Foundation).

Are these premiums high because of market power? Can they be reduced by encouraging out-of-state insurers to sell policies in Delaware? As we discuss below, the short answer is maybe.

Can Delaware Allow Cross Border Sales of Insurance?

Since states are the regulators of health insurance inside their borders, Delaware could already unilaterally allow insurers in other states to sell plans in the state. Eighteen states considered laws to allow such practices prior to ACA passage. Of those, only 2 states signed the bill into law: Rhode Island (SB 2286, 2008) and Wyoming (HB 128, 2010). Post-ACA, 13 states have considered such laws, with only 3 states passing them: Georgia (HB 47, 2011), Kentucky (HB 265, 2012), and Maine (HB 979 2011).

Some have suggested that states, like Delaware, may be too small to support more than one or two insurers without combining with other states’ markets. For this reason Section 1333 of the ACA permits states to form health care choice interstate compacts to allow insurers to sell ACA-compliant policies in any participating state.[2] No ACA compacts have been formed nor does there appear to be much interest by any state in doing so. Since many insurers already have a multi-state presence, such as Delaware’s dominant insurer Highmark Blue Cross Blue Shield, this could be less of a problem than the designers of the ACA imagined.

A nine-state health care compact was formed outside of the purview of the ACA (KS, AL, SC, UT, GA, OK, MO, TX, IN). The objective is to obtain federal funds as block grants and to take over primary responsibility for regulating the health care system, rather than being governed by ACA, Medicaid and Medicare regulations. Interstate compacts can be formed without Congressional approval although their legal status is ambiguous.[3] In this case since federal funds are involved, it seems almost certain that formal Congressional approval is needed. However, efforts to get Congressional approval have languished, although this could change.[4]

Clearly there already exist several avenues for states to allow insurers to sell policies across state borders. But there has been little effort to do so. Why?

Experiences with Cross-Border Sales

In none of the six states that permit cross-border sales of policies has an out-of-state insurer entered the market. Insurers cite the difficulty and high cost of establishing a provider network as the major reason for this, far more important than a state’s regulatory climate or benefit mandates. In fact, one insurer described Maine’s provider network as ‘locked up’ and one in which ‘[we] can’t make a deal [on reimbursement]’.[5] Moreover, they claim that the main reason for interstate differences in premiums is interstate differences in provider prices. An Institute of Medicine study in 2013 indicated that 70% of the differential in commercial insurance costs was due to differentials in provider prices.

Thus, the market power of dominant insurers may not be the only reason for interstate premium differentials and may not even be the main reason. Instead, it appears that two highly concentrated industries, health insurers and healthcare providers, negotiate with each other and divide the revenue stream from policyholders between them. Potentially they could collude to keep the revenue stream as high as possible. Less pejoratively, they could work less diligently to reduce costs, hence policy premiums.

What Should Delaware Do?

Competition should be improved simultaneously in both health insurance and healthcare. The reason is illustrated by Ho and Lee in a 2013 NBER study where they demonstrate that introducing more competition in the insurer market potentially increases the bargaining power of providers, which would offset the effect of competition on insurer premiums. Liberalizing one industry and not the other merely changes the bargaining power and the amount of the revenue stream directed to each, but does not reduce costs for consumers.

Other states have implemented pro-competition measures for the provider industry, such as elimination of certificate-of-need laws and price transparency (see previous columns). Regrettably, the ACA created incentives for additional provider consolidation via ‘accountable care organizations’ (a type of HMO). These should not be allowed to violate anti-trust laws. The FTC has been stepping up enforcement, unfortunately states have not. Delaware’s state government can do more on these measures.

One of the few mechanisms that is reducing healthcare costs is the spread of health savings accounts/high deductible health plans, which cause both patients and providers to be more price/cost-sensitive. HSA-compatible plans had been available in Obamacare exchanges through 2017, however a regulation passed in March 2016 may eliminate them in 2018.[6] Delaware should do whatever it can to make HSA plans accessible to those who want them.

Some states have reduced the ability of insurers and providers to collude and to shut out potential competitors, most commonly by banning the most-favored-nation (MFN) clause, also referred to as a “most favored customer clause,” “prudent buyer clause,” or “nondiscrimination clause”. These ensure that the insurer will receive the best price from the provider.[7] Healthcare providers then cannot offer a better price to another (out-of-state) insurer, thus denying a new insurer the incentive to enter the market. A 2012 DOJ study shows these clauses result in higher prices across the board.[8] The DOJ has prosecuted on this basis and 18 states have enacted the ban (AK, CT, GA, ID, IN, KY, MD, MA, ME, MI, MN, NC, NH, NJ, ND, OH, RI, VT, WV). At a minimum, Delaware could follow the lead of these states. Delaware could also ban anti-steering clauses. In these clauses, an insurer is restricted from steering consumers to competitively priced providers (e.g. out-of-state providers), thus reducing local providers’ incentives to be competitive. Insurer guarantees that a provider will not be excluded from the network create the same problem.

Conclusions

The goal of increasing competition in health insurance by allowing cross-border sales of policies is a good one, but is unlikely to reduce premium prices much unless there is also price competition in the provider network. Additionally, the difficulty and cost of building a local provider network for potential entrants must be reduced as much as possible. Several measures are outlined in this column. Delaware is suffering some of the highest insurance premiums in the country, yet is lagging in investigating and implementing these measures. This has a high cost for its citizens, not just monetarily, but in their health.

-by Stacie Beck, Associate Professor of Economics, University of Delaware

& CRI Advisory Council Member and John Libert, CRI Summer Research Intern.

[1] Large employers who self-insure are exempt from these state regulations.

[2] Compacts require the approval of the US Department of Health and Human Services. HHS has been slow to issue regulations for this, but there has not been any reason to hurry, given states’ disinterest.

[5] Corlette, et al Selling Health Insurance across State Lines Georgetown University Health Policy Institute, 2012, p.11. See also a recent summary by Jenson and Riley “Selling Health Insurance across State Lines” National Academy for State Health Policy, February 2017.